Jon Campisi Apr. 4, 2014, 8:30am


A Philadelphia judge has overruled defense preliminary objections in a

medical malpractice case initiated by a patient who claims he sustained nerve damage following an elective surgery to repair a herniated disc.

Common Pleas Court Judge Frederica Massiah-Jackson in an order last month overruled the objections and ordered the defendants to file a response to the plaintiffs’ amended complaint within 20 days.

Jason Morgan and his wife, Michele, are suing Neurosurgical Associates, Aria Health Physician Services and Dr. Joseph E. Scogna over injuries Jason Morgan says he sustained following an Aug. 15, 2011, procedure to correct a herniated disc in his neck.

The plaintiff claims that the bone fusion operation led to him sustain significant and permanent nerve and neurological damage.

The couple is suing the defendants for negligence and medical malpractice.

After the litigation was commenced, the defendants filed preliminary objections, arguing that they had entered into an agreement to arbitrate all medical negligence claims, the court record shows.

In her ruling, Massiah-Jackson determined that the arbitration agreement at question is not valid because it is “unconscionable.”

An agreement is considered unconscionable, the judge wrote, when one party has no choice but to accept a provision that unreasonably favors the drafting party.

“Not only has the statutory and case law clearly provided protections and parameters for all parties in medical negligence litigation, Plaintiff-Morgan did not have any choice when these documents were presented for his signature,” the judge wrote. “Defendant-Scogna has been unable to identify a single provision which he drafted which favors Plaintiff-Morgan and which does not unreasonably favor the alleged tortfeasor.”

Massiah-Jackson, who noted that the burden of proof for preliminary objections rests on the moving party, ruled that the objections by Scogna and Neurosurgical Associates challenging specificity and conformity of the pleadings, and the assertion of a valid agreement to arbitrate are overruled.

She ordered the sides to prepare for a trial in Philadelphia County.

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